June 2009

June 30, 2009

By now, everyone has heard about the Jamie Thomas-Rasset case, in which the jury awarded the RIAA nearly $2 million for the illegal download of 24 songs.

I was quick to say that the decision was outrageous - and in many ways, it was. Were the 24 songs she was charged with illegally downloading really worth $80,000 each? Of course not.

So why the verdict? I think the jury didn't like her. Not one little bit. Three facts in this case particularly struck me when I read the full story.

First, she supposedly downloaded about 1,700 songs, though she was only charged with downloading 24 of them.

Second, she apparently deliberately gave the RIAA the wrong hard drive during discovery in an attempt to hide her actions. Yup, seen that before. Pisses me off no end when they do that.

Third, it took her three years to suddenly hone in on her ex-husband as the possible infringer.

The jury no doubt saw a guilty weasel running for cover. Thomas-Rasset was probably her own worst enemy. No matter how silly the ultimate verdict, this defendant proves something all litigators know - if the the jury doesn't like or trust the defendant, your case is in trouble.

And from my foxhole, one thing juries hate most is any attempt to conceal evidence. They tend to skewer anyone they believe guilty of playing "hide and seek." Beware, those who are prone to hiding or spoliating evidence - you may do so at your own peril.

June 25, 2009

You would think people would get it by now. Don't e-mail anything you don't want to see in the New York Times, on a billboard on I-95, or in St. Peter's hands.

The minute I heard that S.C. Governor Sanford was hiking for days on the Appalachian Trail and had left no contact info, I turned to John and said, "I wonder who she is. We'll probably find out soon." John was more generous and thought perhaps he really was hiking to get away from it all. I should have bet him. :-)

The jig is up for Governor Sanford, whose Presidential aspirations have just vanished in a puff of smoke. As is customary for politicians, he has embroiled his family in a public nightmare where nothing will be allowed to play out privately.

I have no idea how the paper got the e-mails, but I can tell you from experience that e-mails are almost always the smoking gun in electronic evidence cases - and very frequently in family law. And they can end careers in one heck of a hurry.

June 24, 2009

Yesterday, John and I had the pleasure of doing a podcast with Karl Schieneman of JurInnov, Ltd. Karl has been very successful at rounding up EDD lumanaries forJurInnov's ESI Bytes podcasts. Readers should check out his impressive roster of guests by clicking on the podcast link below.

After talking with Karl, we determiined that one topic that hadn't been covered thus far was EDD in small cases.

Among the subjects we cover in the podcast are finding a good expert, how to save money where the budget is tight, proper preservation, litigation holds, production formats and some of the worst errors we've seen attorneys make (that, of course, could have an entire podcast by itself!).

Thanks for letting us join the club Karl - and don't forget to send along our membership cards and secret decoder rings.

It notes that there is no specific prohibition against reviewing and using metadata in the Rules of Professional Conduct. However, some of the ethical rules may come into play. Notably, the duty of competent representation may require a lawyer to remove metadata in order to maintain confidentiality.

On the other hand, if a lawyer knows (this is the part that troubles me, since I don't understand how "knowledge" could be proven) that privileged information was inadvertently sent, it might be an ethical violation for the receiving lawyer to review and use it under Rule 8.4(c). In this respect, the opinion concludes that "it is always safer to notify the sender before searching electronic documents for metadata." Oh sure, that will happen when pigs fly.

The opinion also notes that Rule 3.4 prohibits altering, destroying or concealing material having potential evidentiary value. Therefore, metadata may not be destroyed in e-discovery and must be produced when requested if not objected to.

June 22, 2009

I am always (and usually with good cause) skeptical of vendor publications. But the recent "Considering Meet and Confer" issued by Orange Legal Technologies is a gem. I loved the "Meet and Confer Checklist" - and there are other useful forms and commentary as well.

June 19, 2009

A recent Law.com article warned lawyers to be wary of the appellate pitfalls of e-filing.

In one case, the law firm meant to file a notice of appeal, but mistakenly filed the wrong document. Oops. The court had no mercy - the right to appeal was lost. In the other case, a lawyer claimed he never received a court e-mail notifiying him of an adverse, appealable order. No mercy and no appeal once again.

In response to these two catastrophic cases of lawyers making an error in e-filing (it gives you the willies thinking of the possible malpractice claims, doesn't it?), my friend and colleague Andy Simpson posted the following suggestions to the ABA Solosez listserve.

Here's what I do:

I have ECF set up to send email notices of filing to myself, my paralegal and a special, efiling-only Gmail address. The notices to both me and my paralegal would prevent the problem of only one person getting the email and deleting it accidentally. The separate Gmail account ensures that I can get web access to my ECF filings if my email server is down. (Especially important if a technical problem, hurricane or other disaster knocks out my local ISP such that I wouldn't get email for awhile.) But it also would offer evidence as to whether a failure in delivery of an ECF email occurred on my end or the government's end. I rarely access my ECF Gmail account. I just let the email notices build up (with 2 GIGS of storage, who cares)? So it simply serves as an archive for me, just in case.

If you are a true solo, you could have a similar system in a couple of ways. You could check your special ECF Gmail account on a weekly basis to review it for anything that was missed. Alternatively (and especially if you lack the discipline to actually check that account every week), you could have ECF set to send email notices to both your office account as well as your personal email account. That wouldn't be practical for a high volume practice, but 99% of true solos probably don't have a high volume litigation practice (because almost by necessity it requires the hiring of staff -- I get an average of 10-15 ECF notices a day and couldn't possibly keep up if I tried to do it without staff)

The problem of filing the wrong document can probably best be avoided by having someone actually open the document that has been e-filed after you receive the ECF notice. I do this as a matter of course since we save a copy of every document in its as-filed condition to the electronic file for the proper case. Hopefully, my paralegal would notice that the efiled document didn't match the document name on the ECF email -- I'm going to raise that as an issue to look for in a firm meeting next week. Certainly for any mission critical document, after reading this article, I am now going to personally review the as-filed document to ensure that no error was made.

June 17, 2009

Last week, I posted advice from John about how to securely lock down a PDF document.

It was good advice. Except that a vendor, who wants you to PAY for a secure lock-down wrote me in part:

"I would like to just say that this method, and most methods used to attempt to protect PDF documents this way DO NOT work. What's true today, will not be true tomorrow as technology approves (sic). Eventually, it will be hacked.

We provide a surefire way of providing not only document protection, but we also make it extremely easy for people to share those documents without any fear of them being altered."

Hey, I understand that folks have a product to sell. But trying to invalidate a good (and free) methodology doesn't seem quite right to me. I asked John for his response, which was:

"Technically the statement is correct. Eventually you could crack a 180 character password with a grid computer system running non-stop for four centuries. I’m just kidding about the password length and time, but the point is that given enough time and resources a password can be cracked. That’s the technical answer; however, I’d like to think that we need to be practical and not try to scare the consumer into using overkill methods when what they already have will meet their needs.

The point of using a two password system for PDFs is to prevent all of those free and low cost crackers from accessing the PDF decryption scheme.

Most of the vendors want you send an unsecured file to their servers. Where's the security in that? Talk about a fertile field to lift client data. That’s the same way the TJX data got compromised - they lifted the credit card data BEFORE it was encrypted."

Both of the authors work for Kroll Ontrack, but there's no shilling in this book. It is thoughtful and informative - and completely vendor-neutral. The authors take a look at the federal rules and their practical implications, discovery technology, computer forensics, and even electronic disclosure in the U.K.

The book contains digests of some of the top e-discovery cases, which will no doubt provide fodder for lawyer/blogger Ralph Losey, who is prone to disagree with Kroll's selection of top cases. I look forward to Ralph cheerfully pointing out cases that he believes were unfairly excluded and those who should have remained on the cutting room floor.

There are a handful of forms, including preservation letters, interrogatories, a request for the production of documents and a couple of sample orders. Finally, there's a helpful glossary.

Mind you, this book is not for the faint of heart. The subject is technical and the material may be hard for many lawyers to get through, especially if they are technophobic.

But there is a lot of good information here, so it may be worth downing a pot of expresso on a Saturday afternoon and doing some concentrated reading.

June 12, 2009

It was a long recess in the proceedings for Kenneth Sodomsky, a Pennsylvania man who had been charged with possession of child pornography after a computer repair technician found the contraband on his computer back in 2004.

A lower court judge had originally ruled that Sodomsky had a right to privacy when he took his computer to a electronics store for repair. That decision was reversed by an appellate court. The Pennsylvania Supreme Court declined to hear the case, and on June 9th, the U.S. Supreme Court also declined to hear the case.

Prosecutors are now free to pursue the charges. The computer technician had originally stumbled (or so he said) on a video of a man fondling a boy. Ultimately, the police found 119 CP images and 39 CP videos.

Clearly, it is a very bad idea to take your computer in for servicing if there's contraband on it. I suspect Mr. Sodomsky will be a guest of the State of Pennsylvania for some time.

June 10, 2009

The following guest post was authored by colleage and friend Dave Bilinsky and first published by the Law Society of British Columbia.

Since we see this issue a lot in cases where electronic evidence is altered, it seemed worthy of a post:

The writer learned of a situation recently when a client took a Word document that was sent from a lawyer, modified the contents and then attempted to claim that the law firm had given them erroneous advice, based on the (modified) letter. Fortunately, the law firm was able to produce a copy of the original letter which documented their (correct) advice.

According to John Simek, the Vice President of Sensei Enterprises Inc. (www.senseient.com) and a computer forensics/Legal Technology expert and frequent speaker at The Pacific Legal Technology Conference and other Legal IT conferences, this entire situation would have been avoided if the law firm had sent out a secure PDF document rather than a Word document. How does one secure a PDF document? According to John, securing a PDF document is not complicated but it does have to be done correctly.

Many people believe that applying a “password” to the PDF document in Adobe Acrobat will secure the document. However, John says try searching: “Adobe Password Cracker” in a Google Search and see the number of hits that turn up, such as this one:

“[name of product] can be used to decrypt protected Adobe Acrobat PDF files, which have "owner" password set, preventing the file from editing (changing), printing, selecting text and graphics (and copying them into the Clipboard), or adding/changing annotations and form fields. Decryption is being done instantly. Decrypted file can be opened in any PDF viewer (e.g. Adobe Acrobat Reader) without any restrictions -- i.e. with edit/copy/print functions enabled. All versions of Adobe Acrobat (including 5.x, which features 128-bit encryption) are supported.”

John states that Adobe owner passwords can be cracked “very” quickly, since these password hacking products simply remove the ‘flag’ that Adobe applies to the document, which does not depend on the ‘strength’ of the password. Once the ‘flag’ is gone, the document is completely open to be edited, printed etc.

In order to properly secure an Adobe document, John advises a ‘two-step’ test.

The first step is to apply a password to the Adobe document that restricts any changes to the document (a “Change Permissions Password”). The second step is to apply an “Open Document” password. When both of these are applied, the PDF password cracker programs cannot get ‘at’ the flag that controls the editing of the document.

You provide your client with the “Open Document” password but not the “Change Permissions Password”. This way they can view the contents of the document, but they have no ability to edit the document.

Using this dual password method, the software that is used to ‘crack’ the Adobe document password cannot get at the ‘flag’ and therefore cannot be used to break the security of the document (at least at this time).

John advises making both passwords robust – ie not vulnerable to a dictionary attack for example, in order to prevent someone trying to guess the passwords in order to defeat the security of the document.

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